How Cops May Get Away With De'Von Bailey Homicide

An autopsy report on the August 3 police shooting that killed De'Von Bailey — issued yesterday, August 15, shortly before his wake and the day before his funeral — has confirmed the cause of the nineteen-year-old's death as homicide. Likewise, just-released body-camera footage from the two Colorado Springs Police Department officers who took part in the gun-down shows that Bailey was running away when he was shot, with three bullets burrowing into his back and a fourth piercing his arm from a similar rear angle. (Access the report below.)

Nonetheless, Darold Killmer, a Denver-based attorney whose firm, Killmer, Lane & Newman, LLP, represents Bailey's family, spent much of an August 15 post-video-release press conference outlining the various ways he predicts that authorities will try to justify the act, and how they might just succeed in clearing the officers of wrongdoing.

"You hand off the investigation to your friends and things come out okay," Killmer said. "This is why we almost never see any decisions to prosecute [a police officer] who's killed a member of the community."

In an interview earlier this week with Westword, Killmer didn't definitively say that criminal charges were warranted against the officers in question, subsequently identified as Sergeant Alan Van't Land and officer Blake Evenson, since video that had previously surfaced didn't capture the entire incident. But, he stressed, "If it plays out that he was not reaching for a gun, this is cold-blooded murder — and cold-blooded murder should be prosecuted as first-degree murder against the officers."

The body-camera video of Van't Land and Evenson introduces some ambiguity into this analysis. It turns out that Bailey had a gun on his person at the time of the shooting — "deep within his basketball shorts," as Killmer put it. The weapon was retrieved by the officers who cut those shorts off Bailey after he hit the pavement near the scene of what was originally reported as a "personal robbery" on the 2400 block of East Fountain Boulevard in the Springs.

Furthermore, Bailey can be seen reaching for his pocket at least twice during his interactions with Van't Land and Evenson. Early on in video captured by Van't Land, he shifts his hand in that direction and begins trying to snake his fingers into the opening in the fabric, only to immediately move both hands away from his body and then raise them over his head after being ordered to do so. In the Evenson material, Bailey appears to be moving a hand toward the pocket again while sprinting away from the officers, only to quickly abandon the effort when it becomes clear that getting access to it is impossible.

In the end, Bailey never came close to grabbing the gun, much less brandishing it at Van't Land and Evenson, and as Killmer pointed out, his only goal within a second or two of making the decision to run appears to have been to flee rather than to shoot at the cops or anyone else. He only made it a few steps before the first projectile tore into him.

Here's a video that compiles the body-camera footage of Van't Land and Evenson, preceded by 911 audio. The Van't Land material gets under way at around the ten-minute point, while Evenson's starts at about 12:30.

Warning: The imagery is extremely graphic and may disturb some readers.

At first blush, the Colorado Springs web page that provides access to the video seems written in a neutral tone, which is appropriate given that the investigation, presently in the hands of the El Paso County Sheriff's Office, is far from complete and is slated to be passed to the 4th Judicial District DA's Office, the designated prosecutor in the case. But a closer look indicates that the powers-that-be in the city are already laying the groundwork for a defense of the shooting.

Specifically, the page boasts links to two excerpts from Colorado statutes. The first, "Stopping of Suspect," seems to have been featured to undermine the argument that Bailey and his companion, Lawrence Stoker, a nineteen-year-old cousin who goes by the nickname "Spazz," were rousted improperly, or that the officers went too far in asking to search them. The segment maintains that "a peace officer may stop any person who he reasonably suspects is committing, has committed, or is about to commit a crime and may require him to give his name and address, identification if available, and an explanation of his actions. ... When a peace officer has stopped a person for questioning pursuant to this section and reasonably suspects that his personal safety requires it, he may conduct a pat-down search of that person for weapons."

The second excerpt offers definitions pertaining to the use of physical force in making an arrest or in preventing an escape. "A peace officer is justified in using deadly physical force upon another person...to defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force; or to effect an arrest; or to prevent the escape from custody of a person whom he reasonably believes...has committed or attempted to commit a felony involving the use or threatened use of a deadly weapon; or...is attempting to escape by the use of a deadly weapon."

Killmer and partner Mari Newman, who also took part in the press conference, countered with a citation of their own, from the 1985 U.S. Supreme Court case Tennessee v. Garner. In its ruling, the majority wrote: "The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so."

Elaborating about this, Killmer said, "The 1985 Supreme Court pronouncement on this issue has been clear: Police don't have unlimited ability to apprehend people. ... The Constitution of the United States of America, as well as the laws of the State of Colorado, circumscribe that police can't shoot a felon to apprehend them. The law says clearly that the officer must have probable cause that there's an imminent risk of death or serious bodily harm to the officer or somebody else."

He acknowledged that "we can all imagine several circumstances where an officer might have a sincere concern for the safety of the community. But officers are trained to be restrained in their use of force and must use less-than-deadly force unless it's to stop imminent death or serious bodily harm. ... In this case, there's no evidence De'Von was trying to hurt somebody. The evidence is to the contrary. He was trying to flee."

Why? Killmer speculated that Bailey didn't want to be found with a weapon in his possession, even though the incident for which the police were called on August 3 turned out to be rather minor. (Stoker was charged with what Killmer dubbed "a low-level misdemeanor, third-degree assault," rather than armed robbery, since the alleged victim's wallet and money weren't found on either him or Bailey.) And while Killmer emphasized that Bailey had no convictions, he was facing charges related to sexual assault on a child by a person in a position of trust that reportedly date back to 2015, when he was a juvenile. He pleaded not guilty to the crime a week or so before he died.

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In Killmer's view, the real risk in the incident came from the cops. "There were multiple witnesses," he stressed. "It was a summer evening. There was a barbecue going on, there was a child's birthday party going on, there were people milling around in their front yards. There were children playing at the park further up. We believe this was never considered by the officers. That type of approach is exceedingly dangerous to the innocent bystanders around there." Moreover, the witnesses to whom Killmer's team has spoken to date have "testified to a person that there was no reason that [Bailey] should have been shot," he said.

During the news conference, Killmer repeated his call for the Colorado Bureau of Investigation and the Colorado Attorney General's Office to take over the case from the sheriff's office and the 4th Judicial District DA, in order to ensure that any decision about charges will be independent; he believes the El Paso County-based agencies are far too cozy with the CSPD. "It would be better for the police that way, too," he insisted. "Consider if their friends decide not to prosecute based on a friendly investigation. What kind of trust does the community have in that kind of investigation? If they're truly interested in clearing their names, they should be happy to turn over the investigation to the CBI."

Still, he acknowledged, "If your friends are investigating you, you're more likely to come out well."

Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.

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